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Customary International Law Acts As Federal Common Law in U.S. Courts

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Customary International Law Acts As Federal Common Law in U.S. Courts Fordham International Law Journal Volume 20, Issue 5 1996 Article 12 Customary International Law Acts As Federal Common Law in U.S. Courts F. Giba-Matthews∗ ∗ Copyright c 1996 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Customary International Law Acts As Federal Common Law in U.S. Courts F. Giba-Matthews Abstract This Note discusses how international common law should act as federal common law in U.S. courts. This Note also explores the constitutional challenges involved in incorporating customary international law into U.S. federal common law. Such challenges revolve around the institutions of representative democracy, federal jurisdiction, and the doctrine of separation of powers. Part I of this Note discusses federal common law and customary international law. Part II of this Note presents the negative and positive effects of incorporating customary international law into federal common law. This Note concludes that to preserve national honor among the community of nations, and to protect U.S. citizens from powerful national and international factions, the U.S. federal courts must continue their incorporation of customary international law as a part of federal common law. As in the days of Jonathan Smith, customary international law is the answer to reprehensible oppression. CUSTOMARY INTERNATIONAL LAW ACTS AS FEDERAL COMMON LAW IN U.S. COURTS F. Giba-Matthews, O.F.M. * I have lived in a part of the country where I have known the worth of good government by the want of it. They would rob you of your property; threaten to burn your houses; oblige you to be on your guard night and day; alarms spread from town to town; families were broken up; the tender mother would cry, "0, my son is among them! What shall I do for my child?" Some were taken captive, children taken out of their schools, and carried away. Then we should hear of an action, and the prisoners were set in front, to be killed by their own friends. How dreadful, how distressing was this! Our distress was so great that we should have been glad to snatch at any- thing that looked like a government .... [N]ow, Mr. Presi- dent, when I saw this Constitution, I found a cure for these disorders. It was just the thing.' INTRODUCTION Currently, in the southern United States, the threats to burn houses2 have become the reality of burnt churches.' In the mid- western United States, a terrorist was convicted and sentenced to death for bombing a federal building4 under the banner of States' rights, where the individual states have superior power • J.D. Candidate, 1999, Fordham University; friar minor in the Order of Friars Minor (Franciscan Catholic priest). I would like to thank Bienvenido P. Lee for his patience and Professors Martin Flaherty, Harold Koh, Peter Weis, Beth Stevens, and Lawerence Moore, S.J. for their comments on earlier drafts of this Note. 1. Jonathan Smith, Speech in the Massachusetts Ratifying Convention, Jan. 25, 1788, in RICHARD MORRIS, BASIc DOCUMENTS ON THE CONFEDERATION AND CONSTITUTION 229 (1970) (quoting Jonathan Smith, Virginia citizen, who supported ratification of U.S. Constitution at state convention). 2. See id. (speaking to Massachusetts Constitutional Convention, Jonathan Smith spoke of citizen's threat to burn people's houses). 3. See United States v. Pierce, 62 F.3d 818, 823 (6th Cir. 1995) (ruling that convic- tion of two Klu Klux Klan, white supremacist group members for conspiracy to burn pre-dominantly African-American Church was fundamentally fair); see also Bob Herbert, A Church Destroyed by Hate, N.Y. TIMES, May 24, 1996, at Al (reporting on surge of Church burnings in South of United States). 4. Arthur Salm, '58 Bombing Illuminates Story Of Racism, A Rabbi, His Temple, SAN DIEGO UNION & TRIB., May 23, 1996, (book review) WL 2160627 (reporting that since 1950s National States Rights Party fought federal government intrusion). 1839 1840 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 20:1839 over federal power.5 Another terrorist repeatedly terrorized citi- zens across the country in an attempt to single-handedly control the development of technology.6 Parallel to these concerns of terrorism, the United States has not fully franchised African-American 7 or Native-American populations' or women.9 Instead, the U.S. Government ° and extremist segments of the nation's population" exclude these minorities from access to courts that protect their rights. 12 Internationally, Jonathan Smith's plea for good govern- 5. See Serge F. Kovaleski, Oklahoma Bombing Conspiracy Theories Ripple Across the Na- tion, WASH. PosT, July 9, 1995, at A3 (reporting on states rights support as reason for Oklahoma City Federal building bombing). 6. See George Lardner, To Unabomb Victims, A Deeper Mystery, Suspect Unknown to Survivors, Who Wonders Why They Were Picked, WASH. PosT, Apr. 14, 1996, at Al (reporting on process of victim selection by unabomber). 7. See, e.g., Laughlin McDonald, The Quiet Revolution in Minority Voting Rights, 42 VAND. L. REV. 1249, 1292 (1989) (discussing voting districts reshaping to better repre- sent African-Americans); see also Floyd D. Weatherspoon, The Devastating Impact of the Justice System on the Status of African-American Males: An Overview Perspective, 23 CAP. U. L. REv. 23, 46 (noting African-Americans compose only 12% of nation's population but half of U.S.'s prison population and one third of all young African-American men were under supervision of criminal justice system in 1994). 8. See Raidza Torres, The Rights of Indigenous Populations: The Emerging International Norm, 16 YALEJ. INT'L L. 127, 148-49 (1991) (discussing policy of neglect in addressing U.S. indigenous peoples' rights and how historically extreme measures were taken by U.S. government toward Native American populations). 9. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (ruling that under certain circumstances women are legally protected from working in abusive environments and over-ruling lower court's decision that standard abusive conduct was not severe); see also Diane L. Bridge, The Glass Ceiling and Sexual Stereotyping: Historicaland Legal Perspective on Women in the Workplace, 4 VA.J. Soc. POL'Y & L. 518, 584-600 (1997) (presenting in depth historical perspective of disenfranchising of woman through-out U.S. history). 10. See Jonathan Drimmer, The Nephews of Uncle Sam: The History, Evolution, and Application of BirthrightCitizenship in the United States, 9 GEO. IMMIGR. L.J. 667, 686 (1995) (reviewing exclusion of Asian, Native, and African-Americans through U.S. legal and social history); see also Sheri Lynn Johnson, The Color of Truth: Race and the Assessment of Credibility, 1 MICH.J. RACE & L. 261, 269 (1996) (outlining exclusion of African-Ameri- cans in former slave states). 11. See Hanrahan v. Hampton, 446 U.S. 754, 762 (1980) (defining extremist orga- nizations as ones that are paramilitary, uniformed, and violent); see also Howard Rosen- berg, Neo-Nazis Cloud the Utah Air, "Aryan Nations" to Debut over Tiny Salt Lake City Station, L.A. TIMFS, Nov. 24, 1987, at 1 (reporting Neo-nazi radio host preaching "the Holocaust was a hoax" and reporting how Aryan Nation radio program describes Jews as satanic, and blacks and other minorities as subhuman). 12. See Drimmer, supra note 10, at 667 (discussing right of citizenship); see also Andrew G. Deiss, A Brief History of CriminalJury in United States, 61 U. CHi. L. REv. 867, 878 (1994) (discussing laws forbidding unpropertied white men, African-Americans, women, and Jews from voting and concluding that currently, when these minorities finally did gain access to being part of juries, jury trials are rarely employed). 1997] CUSTOMARY INT'L LAW AS.FEDERAL COMMON LAW 1841 ment 3 is prophetic of the U.S. goal to provide world leadership in human rights protection.14 The U.S. Government professes faith in Smith's concerns when it addresses the internal violence in Rwanda, t5 Burundi, 6 the former Yugoslavia,1 7 and Guate- mala,1 8 and when the U.S. Government prosecutes an extra-terri- torially indicted defendant within its own borders.19 Prior to the founding of the United Nations,20 customary international law2' prohibiting such acts as torture, genocide, 22 2 and slavery, was a part of the law of nations. 1 'Law of nations' 13. See MORRIS, supra note 1 at 229 (pleading in favor of ratification of U.S. Consti- tution in order to prevent domestic .violence). 14. See Theodore Sorensen, The Star Spangled Shrug: Is America Shirking Its Leadership Role?, WASH. POST, July 2, 1995, at CI (discussing U.S. role as world leader and how such role is sought by world community and not found). 15. See Chege Mbitiru, FearingHome, Refugees Flee Zairian Camps; U.S. Condemns Ex- pulsion of Rwandans, Burundians, WASH. PosT, Aug. 24, 1995, at A27 (reporting U.S. State Department's call for halt to immediate expulsions of Hutu-Rwandans who killed their neighbor Tutsi-Rwandans during ethnic upheaval in which militias of majority out of power Hutu Tribe killed estimated 500,000 people, mostly minority Tutsis, then in power); Smith, supra note 1, at 229 (arguing for strong Constitutional protection for U.S. citizens against factional violence). 16. See Mbitiru, supra note 15, at 27 (reporting on U.S. condemnation of expul- sions of Rwandan and Burundian refugees from Zairian camps). 17. See John Goshko, U.N. Moving Toward Creation of Criminal Court; But Advocates FearSevere Limits, Backed by U.S., Will Be Imposed on Its Independence, WASH. POST, Apr. 21, 1996, at A27 (reporting on dispute regarding criminal court's jurisdiction, with U.S. advocating limited jurisdiction of international humanitarian law). 18.
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